A few more things on Gates


Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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44 Responses

  1. Jaybird says:

    Shouldn’t we instead be pleased that the police took that criminal off the street where he was a danger to others?

    Why aren’t we focusing on how the police made all of us *SAFER* through his actions?Report

  2. Freddie says:

    There are many sad things about our racial dialogue that this incident– and your previous post’s comments– have brought to the forefront. One thing that is clear is that any accusations of racism, in any context, for any reason, ever, are going to act as a dog-whistle and bring a flood of angry (to the point of unhinged) commenters, railing at the injustice of ever alleging racism. Matt Yglesias is simply correct; for many people, accusations of racism are worse than racism. The bile and vitriol from people in the previous comments thread eclipses anything else I’ve seen in the comments on the League– and in regards to an issue that is, at best, racially troubling. And why? Because many people have become so utterly fearful and angry towards race talk that they will not fail, ever, to react angrily towards an accusation of racism. Short of a lynching or the n-word, there’s going to be more backlash against the people alleging racism than against the alleged racist. The previous comment thread proves it again.

    More troubling for me, though, is the consensus view on the police, which is utterly contrary to this country’s ideals and to elementary notions of democracy. You’ll note few things. For one, people say that respect for the police is mandatory. That is flatly contrary to the basic ideals of democracy. In a democracy– in America– you are under no obligation whatsoever to “respect” police. All that you need to do to prevent being arrested, if we live up to the ideals we say we do, is to not break the law.

    And Skip Gates did not break the law, and the arresting officer did. Mike from the Big Stick and others kept insisting that the police officer was “doing his job”. His job, actually, is to comport himself in accordance with the law. When he refused multiple times to provide identifying information to Gates, he was breaking Massachusetts state law. And when he arrested Gates, he was in violation of his duty, as there is absolutely no credible argument that Gates’s conduct reached the statutory requirements for disorderly conduct. You see, in a just society of laws, you can’t just arrest people because you think they’re an asshole, or because it suits you to. You have to have an actual reason as enumerated in statute. If you want the state security forces to be able to pick you up for no legal reason and at any time, move to North Korea.

    What is both funny and profoundly sad, to me, is the number of self-styled libertarians and conservatives who insist that Gates, and by implication, anyone, should have bowed and scraped and begged before the police. Yes, these champions of “small government,” who claim to represent distrust of the government, insist that every citizen, regardless of his legal rights, should bend over and show absurd deference to the enforcers of the state. It’s an absurd contradiction, but then it’s par for the course, in America. In a democracy you don’t have to like the police. You don’t have to respect them. You don’t have to kiss their ass. You just have to not break the law. I respect police, most of the time. I respect the profession and the institution. There have been a few incidents where individual police officers have demonstrated themselves unworthy of my respect, so I don’t respect them. Which do you suppose is worth more? The respect of the person who shows over-the-top deference to every police officer he meets out of fear? Or the respect of someone who gives it out with a sense of discrimination and which requires reasons to be given?

    Spending part of my childhood living in Indonesia, I saw people– good people, who never broke a law or committed a crime– in terror before the police. And they were right to be afraid, because they lived, at the time, in a repressive authoritarianism. They had to fear the police, and bow and beg, because they did not live in a society of liberty and laws. We do. And part of that bargain is that you don’t have to fear the security forces any more than the degree to which you break the law. If you want the enforcement of showy respect and a situation where every cop must be obeyed and feared, that’s between you and your conscience. But it is absolutely, 100% unAmerican.Report

    • Jaybird in reply to Freddie says:

      This police work is analagous to the TSA.

      No criminals were taken off the street. No one is safer because of this arrest. Messages were sent… but they’re more that “all y’all are subjects” rather than “you’re safer because of our presence”.Report

    • Will in reply to Freddie says:

      One caveat: while we’re under no legal obligation to treat the police with respect, I do think their job warrants some measure of social recognition. In most encounters with law enforcement, I try to be respectful and polite. I don’t think that should stop us from protesting unfair treatment, however.Report

    • Freddie,

      When Congress passed the line-item veto under Clinton and then later it was ruled un-Constitutional by the Supreme Court…were all those who voted ‘Yay’ guilty of breaking the law?Report

    • Let me also add that I think you are confusing the people who said Gates should have shut up as suggesting that he never question the police or challenge their actions. What we’re saying it that he chose the wrong forum to do so. The police cannot do their jobs effectively if we condone/encourage people to voice their displeasure and air their cultural baggage in the midst of an investigation (and to be clear, that is what was going on when Gates started his rant).

      My workplace has an open-door policy where we can voice grievances to our bosses. Standing up in the middle of a meeting and screaming at my boss would not be the appropriate time to air those greivances…do you agree?Report

    • ChrisWWW in reply to Freddie says:

      I’m with Freddie,
      Respecting the police may be the smart thing to do (they gotz the gunz), but it’s not – nor should it be – the required thing to do.Report

    • E.D. Kain in reply to Freddie says:

      Heh. Freddie, that comment makes me think maybe you miss writing actual blog posts and are using lengthy comments as a substitute…Report

  3. Dong Hangslow says:


    You’ve cited to a criminal defense lawyer’s summary of the Mass disorderly conduct statute, not the statute itself. Assuming, however, that this summary is accurate, the cop likely did have probable cause to believe that Gates had violated the statute. The statute is incredibly broad and would allow for conviction of someone who simply caused a “risk” of “public annoyance.” Of course, we can ask why the statute is so broad, but we would be asking the wrong question. Cops enforce the law as written, not as they wish it to be. The Mass law cast a wide net for what constitutes disorderly conduct; accordingly, the cop cast a wide net.

    Also, a common misconception evidenced in this post and in the comments to the “due deference” post is that Gates needed to be “guilty” of the crime of disorderly conduct in order for the cop to have arrested him. In fact, the cop only need to have probable cause that Gates’ behavior met the definition of disorderly conduct under the statute. We could argue all day about whether Gates would have been convicted of a violation of the statute, but we’d be arguing over the wrong question.Report

    • Will in reply to Dong Hangslow says:

      Doug Hangslow –

      I think crimes like disorderly conduct are written in an overly-broad fashion because the actions in question are very context-dependent. That said, I think only a very attenuated reading of the statute would justify this arrest. The legal consensus (per Slate Magazine) seems to reflect this.Report

      • Dong Hangslow in reply to Will says:

        Yes, I’m sure the two ACLU employees quoted by Slate (who may or may not be lawyers) would feel that way. In any event, the article does not attempt to answer the question of whether the Gates’ conduct was close enough to disorderly conduct to justify an arrest based on probable cause. Instead, they claim that “it is rare to see a disorderly conduct CONVICTION for behavior on the suspect’s own front porch.” (emphasis added). This may be true, but it is beside the point.Report

        • Will in reply to Dong Hangslow says:

          Patterico – a district attorney, I believe, and certainly no fan of the ACLU – also thinks that the arrest was inappropriate:


          As I said, I think this reflects an emerging legal consensus.Report

          • Dong Hangslow in reply to Will says:

            Ok. But this is an analysis based on prosecutorial discretion and not on whether the cop reasonably believed that Gates’ conduct met the legal standard of disorderly conduct under Mass law.

            Cops arrest those who they believe broke the law; prosecutors decide which cases to prosecute and which cases to dismiss/settle. It is a different analysis.

            I’m not going to pull cases to find out how courts have interpreted the statutory language (e.g., “tumultuous behavior”), but I’ve yet to see someone parse the Mass statute and explain why Gates’ conduct could not be interpreted by a reasonable cop to be disorderly conduct. In the end, Gates probably wouldn’t have been convicted, but it seems that his (alleged) conduct was close enough to warrant the cop’s reasonable belief that Gates was violating the law.Report

            • alkali in reply to Dong Hangslow says:

              Here’s a case, then: go here and search for the Mallahan case, which is a Massachusetts court decision from just last year. A lowlife screamed obscenities at police in full view of a hundred people. The court reversed the disorderly conduct conviction as a matter of law. Save for a direct incitement to violence (“fighting words”), it’s very clear that speech is protected under these circumstances and not prosecutable. You don’t have to be a constitutional law scholar to know it, either.Report

              • Dong Hangslow in reply to alkali says:

                The Mallahan case would certainly support the claim that Gates would have been found not guilty of disorderly conduct, but it wouldn’t necessarily support the view that Gates shouldn’t have been arrested. Again, the issue is whether the cop reasonably believed that Gates was committing a crime. The mere fact that Mahallan went to an appeallate panel means that it was a close case.Report

    • Bob in reply to Dong Hangslow says:

      Hey Will, it’s *Dong* Hanglow.


  4. From Will:
    I don’t doubt that Gates’ response was intemperate – though, given the circumstances, I understand why he reacted the way he did…

    The ‘circumstances’ you are talking about was a police officer coming up to his door and asking if he could speak to him on the porch about a call they had of a roberry in progress at that address. If that justifies Gates immediate response then I think this is more of a comment on the Jerry Springer effect in our country than race.Report